Rish Equipment Co.

National Labor Relations Board - Board Decisions

Feb 15, 1968

169 N.L.R.B. 847 (N.L.R.B. 1968)

RISH EQUIPMENT CO.
Rish Equipment Company and Chauffeurs, Team-
sters and Helpers Local Union No. 175, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
9-CA-4013 and 9-CA-4269
February 15,1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 14, 1967, Trial Examiner Eugene
F. Frey issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint.'
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that Respondent, Rish Equipment Company,
Bluefield, West Virginia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions not found herein.
' We hereby modify our Order to correct the Trial Examiner's inadver-
tent failure to recommend the dismissal of these allegations of the com-
plaint.
2 In the circumstances of this case, we find it unnecessary to consider
the Trial Examiner's statement that, "the Union's status under the certifi-
cation should be permitted to continue without challenge for at least a year
after Respondent notified the Regional Director of its compliance with the
Board Order in the prior case."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
847
EUGENE F. FREY, Trial Examiner: The issues in this
case are whether or not Respondent, Rish Equipment
Company (1) interfered with its employees in the exercise
of rights guaranteed to them by the Act, by actual surveil-
lance of employees' meetings with the above-named
Union, and conduct giving the impression of such surveil-
lance, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq. (herein called the Act), and (2) whether or not the
Union had majority status as bargaining representative in
or about April 1967 among Respondent's employees in
an appropriate unit, and whether Respondent thereafter
refused to recognize and bargain with the Union as such
representative, because it had a good-faith doubt of its
status, or because it desired to evade its statutory bar-
gaining duty, in violation of Section 8(a)(5) of the Act.'
The issues were tried before me on August 29 and 30,
1967, at Bluefield, West Virginia, with all parties par-
ticipating in the trial through counsel. At the close of the
testimony all parties waived oral argument and were
given opportunity to file written briefs, and thereafter
General Counsel filed a brief which has been duly con-
sidered in preparation of this Decision.
Upon the entire record in this case, and from my obser-
vation of witnesses on the stand, I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD OVER THE PARTIES
Respondent is a West Virginia corporation engaged in
the sale and service of heavy construction equipment at
various locations in West Virginia, Virginia, Ohio, and
Maryland. Its place of business in Bluefield, West Vir-
ginia, is the only one involved in this case. In the calendar
year 1966 Respondent had a direct outflow of equipment
and products from its Bluefield facility valued in excess
of $50,000, and in the same period had a direct inflow of
parts, supplies and equipment to that facility valued in ex-
cess of $50,000. I find that Respondent is and has been an
employer engaged in commerce within the meaning of the
Act.
The Union is and has been a labor organization within
the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Events
In May 1963, the Union began a campaign to organize
workers at Respondent's Bluefield plant, and on May 14,
1963, filed a petition for an election with the Board in
Case 9-RC-5417. After a hearing in that proceeding on
the issue whether the appropriate unit should include only
employees at Bluefield, or also include those at the
Coeburn and Salem-Roanoke plants, the Board issued its
Decision and Direction of Election on July 26, 1963,
' The issues arose from a consolidated complaint issued by the General
Counsel of the Board on June 29 , 1967, after investigation of a charge
filed by the Union in Case 9-CA-4013 on August 18 , 1966, and another
charge filed by it in Case 9-CA-4269 on May 5, 1967.
169 NLRB No. 129
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directing an election in a unit consisting only of em-
ployees at the Bluefield facility, including parts depart-
ment and service department employees, janitors, the in-
side salesmen , and plant clerical employees, but exclud-
ing all office clerical employees, commissioned salesmen,
guards, professional employees, and supervisors as
defined in the Act. After an election in due course, the
Regional Director, on February 10, 1965, duly issued a
certification of the Union as the statutory bargaining
agent of employees in said unit.
On February 23, 1965, the Union formally requested
Respondent to recognize and bargain with it as such bar-
gaining representative. Prior thereto there had been litiga-
tion before the Board on the Union's charges of unfair
labor practices, which had resulted in a Board Decision
and Order on January 22, 1965, remanding the represen-
tation case for action by the Regional Director on
disputed ballots, and finding Respondent had violated
Section 8(a)(3) and (1) of the Act.2 On application of the
Board , the Order was enforced by the United States
Court of Appeals for the Fourth Circuit on April 10,
1966.3 Thereafter Respondent complied with the court
decree and Board Order, and sometime in June 1966 ad-
vised the Regional Director for Region 9 of such com-
pliance.
B. Alleged Misconduct by Respondent
1. Meador's speech
On July 25, 1966, the Union notified all employees in
the unit, by letter, of the court decision, saying "the way
is now open to begin contract negotiations," and advising
them of a special meeting at 3 p.m. on Sunday, July 31, at
the Bluefield Auditorium restaurant in Bluefield, at which
they could express their views about contract proposals
in preparation for contract negotiations. The last sentence
of the letter said "this meeting could well affect your em-
ployment at Rish Equipment Company."
Respondent learned about the letter and its contents
within the next 2 days, and on July 28 called a meeting of
all employees in the unit at the Bluefield plant, at which
Plant Manager O. J. Meador, Jr., gave a prepared speech
in which he referred to the letter and its contents, told
them the letter completely misstated the facts, and said
that Respondent had "complied 100% with all requests
from the Labor Board." He then said that the letter "in-
structed" the workers to attend the July 31 meeting, and
commented that "you are under no obligation to attend
this meeting, but if you desire to do so it is entirely up to
you," and that "the important thing we want you to un-
derstand, in relation to the last paragraph of this letter
(which he quoted to them) is that attending this meeting
will in no way affect your employment with this com-
pany; you have your jobs, and your jobs are secure no
matter what happens."4 I find nothing coercive in
Meador's remarks indicating employees were under no
obligation to attend the meeting but were free to attend or
not, as they chose, without fear of effect on their jobs.
Even if I interpreted his remarks, as Dunford and John-
ston did, to mean that Respondent preferred they do not
attend, such remark would be devoid of coercion because
Meador took pains to indicate that they could do as they
pleased about attendance thereat, without fear of reprisal,
and attendance at it would in no way affect their jobs. Nor
can his remarks showing knowledge of the letter and the
meeting reasonably be held, in the entire context of his
speech, to convey the impression that Respondent was
keeping their activities under surveillance; at most they
indicated that there was no compulsion upon them to at-
tend, which is far from directing or persuading them not
to attend, much less with any implication that they would
be watched to see whether they did or not. I find no viola-
tion of the Act in this incident.5
2. Alleged surveillance of the meeting
The Bluefield Auditorium, where the July 31 union
meeting was held, is on Stadium Drive, a main highway
leading directly to a municipal recreation area containing
football and baseball fields, and other play facilities.
Twelve to fourteen employees attended the meeting.
About five of them arrived early in their cars and waited
outside in the open parking area adjacent to the Drive for
the meeting to begin, while a few waited upstairs in the
meeting room from which they could see the Drive. Just
before 3 p.m., some of them saw Meador drive slowly
past in his car, with Clyde V. Stanton, Respondent's
general service supervisor, sitting alongside Meador;
both looking toward the auditorium as they went by.
Meador drove up the road toward the stadium, turned
around and drove slowly past the auditorium in the other
direction, after the meeting had started and all the em-
ployees were in it.6 Stanton's explanation of this trip was,
that Meador picked him up at home shortly before 3 p.m.
and drove him along Stadium Drive to the recreation area
where both watched a minor league baseball game, and
that they used the Drive, one of three possible ap-
proaches to the play area, because Stanton often used it
to avoid traffic when he drove in his own car to that area
to watch games, or took his family to the playground or
picnic areas. However, I do not credit his reason for the
trip, for while he professed to be a baseball fan who
watched games there often on Sundays, he does not ex-
plain why he and Meador did not see the whole game this
Sunday, but arrived after it started and left before it
x 150 N LRB 1185.
3 359 F.2d 391.
4 The facts as to this speech are based on credited testimony of Meador,
which is corroborated in large part by that of employees Donald E. Dun-
ford , and Homer A. Johnston . Testimony of the latter to the effect that
Meador also said he "would rather you did not attend " the meeting is not
credited , for their testimony about the whole talk is rather vague and
general , and tells only part of the speech , and from their manner of
testimony and ability to recall only portions of his talk, I am convinced
that the portion of their story quoted above states only their self-serving
conclusion as to what Meador 's actual words meant, not what he actually
said. For the same reasons, I do not credit other testimony of these em-
ployees in conflict with the above findings.
5 In reaching this conclusion, I have also considered Respondent's prior
union animus and propensity to discriminatory action to thwart prounion
or concerted activity by its employees , as demonstrated in the earlier
Board proceeding which Respondent failed to overthrow in the courts.
However, since the record shows Respondent, throughout the events
shown herein, was guided largely by the advice of its attorney, and it had
completed compliance with the Board 's Order in the prior case shortly be-
forethe Union sent out its meeting notice , it is also inferable that Respond-
ent would be cautious in its later prepared remarks to employees about
the Union in a conscious effort not to overstep the bounds of legitimate
action , as it did earlier.
6 1 find these facts on mutually corroborative testimony of Arnold E.
Yost, Edwin E. Wickline, and Homer A. Johnston, as corroborated by ad-
missions of Stanton. Meador did not testify about this incident
RISH EQUIPMENT CO. 849
ended, which seems like a rather indifferent attitude from
a true baseball fan. Further, he admits he recognized
plant employees and their cars at the Auditorium as he
passed by on either the trip to or from the play area. He
claims he did not know a meeting of employees was in
progress there because he had not seen the union letter
announcing it, but this is not credible because Meador
clearly knew about both the letter and the meeting details
when he spoke to the employees about it on the 28th, and
Stanton admits he helped Meador prepare that speech, so
he also must have known about the meeting. Finally,
while he says they used Stadium Drive on this occasion
to avoid traffic in a large shopping center on one of the
other approaches, he does not credibly explain how such
traffic would have prevented his use of that route on a
Sunday when most of the commercial establishments in
the shopping center were closed. Again, Stanton does not
indicate whether he was in the habit of going to ball games
with Meador,'nor did he'give any details of the ball game
which would tend to indicate he in fact attended it. I
therefore discredit Stanton's explanation of the use of
Stadium Drive on this occasion, and I can only infer and
find that both officials drove past the Auditorium twice in
order to find out how many, if any, employees attended
the meeting after Meador's speech of the 28th. I find that
Respondent thereby engaged in surveillance of the em-
ployees' union meeting, and gave employees the clear im-
pression of such surveillance, which conduct tended to
coerce and restrain employees in the exercise of their
concerted and union activities, in violation of Section
8(a)(1) of the Act.
3. The refusal to bargain
a. The requests to bargain, and Respondent's reply
On February 27, 1967, the Union sent a letter to
Respondent formally requesting recognition as bargaining
agent of Bluefield employees in the unit found by the
Board in its 1965 certification of the Union, and negotia-
tion of a contract. The same day the Union's business
agent, Kermit H. Harris, called Respondent's attorney,
George V. Gardner, read the letter to him and requested
a bargaining meeting, saying the Union still represented
all the workers by virtue of the certification. Gardner ex-
pressed some doubt that the Union then represented the
employees, but said he would contact Respondent.
Neither Respondent nor Gardner replied to the union
letter.
Between April 5 and 8, 1967, the Union distributed
membership application cards, which also included a
designation of the Union as bargaining agent of the signer,
among Bluefield employees through the agency of Arnold
E. Yost, and by April 8, Yost secured signed cards from
19 employees, which he gave to Harris on the ninth. On
April 10, Harris called Gardner, told him he had secured
additional membership application cards from employees,
and requested a meeting to negotiate a contract. He also
offered to submit the cards to a third party for inspection.
Gardner replied that he did not doubt Harris' word about
having the signed cards, and said he would have to con-
tact Respondent. On April 11, the Union sent Respond-
ent a letter, with copy to Gardner, renewing its demand
for recognition and bargaining, claiming to represent all
the employees "on the basis of our prior certification of
the N.L.R.B. and by authorization cards from a vast
majority of the employees," and offering to present proof
of the majority if Respondent had any doubt about it.
Respondent and Gardner received the letter on April 12,
but neither replied to it. About a week later, Harris called
Gardner about the letter, and Gardner said he had just
seen the letter (having been out of town to that date) and
would contact Respondent, and would call Harris back.
The Union never received any reply from Respondent or
its attorney.
I find on these facts that the Union made proper de-
mands for recognition and bargaining on February 27,
and April 11, 1967, and that Respondent has failed, since
those dates, to bargain with the Union.
b. The appropriate unit
In its 1965 decision in Case 9-RC-5417, the Board
found an appropriate unit consisted of all employees at
the Bluefield plant, with the inclusions and exclusions
found above, and the February 1965 certification recog-
nized the Union as the statutory bargaining agent for wor-
kers in that unit. The Board made the one-plant unit find-
ing only 'after taking extensive testimony and making
detailed findings which rejected Respondent's claim that
the only appropriate unit was a multiplant unit including
either Bluefield, Coeburn, and Salem-Roanoke, or
Bluefield and Coeburn.
Respondent now claims the single-plant unit is no
longer appropriate because of changes in the organization
and operation of its business, which have centralized at
Bluefield much authority and operations which were
previously decentralized among various plants. On this
point, I find from credible testimony of Stanton and
Meador that: Stanton has, since 1964, been given authori-
ty over labor relations and personnel policies for parts
and service workers in Respondent's 16 branches in 4
States,' including final resolution of grievances, final ap-
proval of hiring and discharge of such workers, and final
approval of their wage rates and raises, which are deter-
mined for all plants on the basis of ability and merit, with
no reliance on seniority within any one plant. Centralized
inventory control and buying of parts for all plants, with
use of computerized records, has been established at
Bluefield, as against single-plant control and buying in
1963 and 1964. Parts handling and service operations at
Coeburn and Salem-Roanoke are now more closely con-
trolled through telephone and two-way radio by the parts
and service managers stationed at Bluefield, who also
visit those two plants frequently.8 All personnel records
for the 16 branches in 4 States are now kept at the main
office in Bluefield. Respondent has also expanded and im-
proved its radio control over an expanded fleet of service
equipment operating out of Bluefield in the West Virginia
and Virginia areas. However, while there is thus closer
and more centralized control of general personnel poli-
cies, as well as parts and service operations, from
Bluefield over the other two plants, the record also shows
that the operations at all three plants are basically the
same as before;9 plant managers at each still have im-
mediate and substantial control over the operations of
7 Ohio, West Virginia, Virginia, and Maryland.
8 Coeburn and Salem-Roanoke are each about 100 miles away from
Bluefield.
9 While each plant has parts sales and service operations, the Bluefield
plant is mainly a sales operation, with only minor parts and service func-
tions.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel under them, including effective hiring and
discharging in most instances (subject only to final ap-
proval and possible reversal by Stanton later,1° and
there is little interchange of workers between the plants,
except for occasional transfers of supervisory personnel,
so that operations at each remain substantially au-
tonomous, as before, so far as operations of parts and ser-
vice personnel. In all the circumstances, I must conclude
that the improvement in parts and service control, with
more concentration of top management administrative
control at Bluefield, has not been so drastic as to make a
multiplant unit of Bluefield, Coeburn, and Salem-
Roanoke, the only appropriate unit presently, as against
one limited to Bluefield. Hence, I find that the Bluefield
unit as found by the Board in 1963 and 1965, remains an
appropriate unit, within the meaning of Section 9(b) of
the Act.' 1
c. The Union's majority status , and Respondent's doubts
thereon
(1) The 1965 certification
The February 1965 certification was issued only after
the Board Decision and Order in the prior unfair labor
practice case, in which it also resolved issues in the
representation case relating to challenged ballots and the
status of certain voters. Aside from its formal demand for
recognition on February 23, 1965, the Union did nothing
further to seek bargaining while the Board took that case
to the United States Court of Appeals for the Fourth Cir-
cuit to enforce its Order. While this enforcement proceed-
ing was pending , the unfair labor practices in the prior
case remained unremedied, which is probably why the
Union took no steps to act as bargaining agent under the
certification until after the court enforced the Board
Order in April 1966, and Respondent had finally com-
plied with that Order, in part, by posting the required
notice thereafter. In these circumstances it would appear
that the 1-year presumption of majority status inherent in
the certification must be considered as continuing during
the period of litigation of the contemporaneous unfair
labor practices, and for a reasonable period of time after
they have been remedied, in order to give the bargaining
relationship created by the certification a reasonable
chance to operate and succeed without outside inter-
ference or' improper pressure. Ray Brooks v. N.L.R.B.,
348 U.S. 96; Frank Bros. v. N.L.R.B., 321 U.S. 705,
706; Mar-Jac Poultry Company, Inc., 136 NLRB 785
(extension of certification period for 1 year after actual
settlement of unfair labor practices which interrupted bar-
gaining pursuant to the certification); Capitol Aviation,
Inc., 152 NLRB 745, 756 (similar extension of statutory
bargaining period on similar facts); General Electric
Company, Battery Products, Capacitator Department,
163 NLRB 198; San Clemente Publishing Corporation,
167 NLRB 6. On these precedents the Union's status
under the certification should be permitted to continue
without challenge for at least a year after Respondent
notifies the Regional Director of its compliance with the
Board Order in the prior case.
Respondent bases its refusal to bargain on the claim of
an honest doubt as to the Union's majority status in 1967,
which arose in part from its view that the expansion and
changes in its business noted above had made a three-
plant unit the only appropriate one, and in part from infor-
mation it received that shortly before April 1967 some
employees at Bluefield were circulating a petition among
employees seeking to reject the Union as their bargaining
agent. The Board has long held that, where a certification
is more than a year old, an employer may withhold bar-
gaining without violating the Act and may insist that the
Union reestablish its statutory representative status if the
employer has a good-faith doubt of the Union's continu-
ing majority, but there are two prerequisites for establish-
ment of that good faith, (1) some reasonable grounds for
believing that the Union had lost its majority status, and
(2) the majority issue must not have been raised by the
employer in a context of illegal antiunion activities. 12
Here, Respondent does not satisfy either prerequisite. I
have already found above that the claim of a multiplant
unit as the only appropriate unit in 1967 has no merit. As
for defection of employees from the Union, while the
record shows that at or before the time the Union secured
new membership application cards, a petition rejecting
the Union was being circulated in the plant for signature,
Respondent presents no proof, either through its officials,
employees, or otherwise, to show how many signatures
were obtained on the petition, or that enough employees
may have had antiunion sentiments at that time to destroy
the reliability of the 1967 cards.13 To the contrary,
Bluefield Sales Manager Meador testified that he had no
idea or knowledge whether or not the Union represented
a majority at the plant during 1967 or even in 1966, and
his superior, Stanton, did not indicate that Respondent
made any attempt to get, or had received, definite facts on
that subject.14 Hence, the record falls short of showing
persuasively that Respondent, in April, had reasonable
grounds to doubt the Union's majority status.15 Further,
the present claim was raised after Respondent had en-
gaged in illegal surveillance of employees' protected ac-
tivities as found above.
For all of the above reasons, I am constrained to con-
clude that the majority status inherent in the certification
10 Stanton visits the Coeburn and Salem-Roanoke plants rather in-
frequently, at times only about once in 2 or more months.
u Utica Mutual Insurance Co., 165 NLRB 964; and cf., Davis
Cafeteria, Inc., 160 NLRB 1141; Groendyke Transport, Inc., 164
NLRB 231; and The Western and Southern Life Insurance Company,
163 NLRB 138.
12 C & C Plywood Corporation, 163 NLRB 1022, and Celanese Cor-
poration ofAmerica, 95 NLRB 664.
13 The reliability of those cards is considered in detail below.
14 While Stanton got reliable information about the petition from
another official , Umberger, he excuses his failure to follow it up by inqui-
ries among employees by an alleged fear of being charged with an unfair
labor practice. This however ignores the long-settled rule that an em-
ployer may question employees about their union sentiments , provided he
does so without coercion and in circumstances indicating that it is done
solely to resolve an honest doubt of the Union's actual majority status.
Blue Flash Express, Inc., 109 NLRB 591, Struksnes Construction Co.,
Inc., 148 NLRB 1368,1370,137 1.
IS Testimony of Business Agent Harris and employee Yost indicates
that the Union itself may have had some doubt about the continuing ef-
ficacy of its certification, when it undertook to get new membership appli-
cations signed in April on advice of its attorney, and when Yost solicited
signatures , he told employees the cards were needed to show Respondent
and the Board that the employees "still wanted the Union to represent
them." However, this testimony does not support Respondent 's claim of
doubt because there is no proof that Respondent learned what Yost told
the employees on orders from Harris. In any event, Attorney Gardner did
not later question Harris' claim that he had new cards signed by a majority
of the employees.
RISH EQUIPMENT CO. 851
must be presumed to have continued for at least 1 year
after Respondent 's compliance with the Board Order in
the prior case which apparently was not completed until
June 1966 . This would continue the presumption prima
facie at least through April 1967. 1 also conclude that
Respondent has failed to submit proof adequate to rebut
that presumption , particularly where it engaged in further
unfair labor practices shortly after compliance with the
Board Order , which would indicate that it was still pursu-
ing a policy hostile to the collective -bargaining principle
inherent in the Act and was taking further action calcu-
lated to undermine the Union 's certified status. See Joy
Silk Mills, 85 NLRB 1263 , enfd . 185 F.2d 732
(C.A.D.C.), cert. denied 341 U.S. 914.
(2) The 1967 authorization cards
However, since the Union apparently felt it advisable
to secure new cards as up-to-date proof of majority
status, and the parties have litigated the reliability of
these cards, I proceed to their analysis in consideration of
the alleged alternate basis for majority status.
On the basis of credible evidence in the record and
stipulations of the parties, I find that on April 10, 1967,
there were 30 employees in the appropriate unit at
Bluefield as found above, so that 16 or more reliable
cards would give the Union majority status. 16
On April 4, 1967, Union Agent Harris gave blank
membership application cards to employee Yost, with in-
structions to hand them out for signatures, advising him
that Respondent had refused to bargain, and directing him
to tell the workers the cards were not to be used for an
election, but only to show Respondent and the Board that
the employees still wanted the Union to represent them
as bargaining agent. Yost solicited the employees
between April 5 and 8, telling each man who signed the
purpose as suggested by Harris. By April 9, he had
secured 19 signed cards, which he turned over to Harris
that day. All of the signers except two filled in personal
data on their own cards and read and signed them in
Yost's presence, after he had explained the purpose
aforesaid; Oscar Thomas and Erie E. Walls could not or
did not read the wording on the cards, so Yost read to
each the second portion of the printing, which indicated
the signer designated the Union as bargaining agent, ex-
plained the purpose of the card as aforesaid, filled in the
blanks for them, and each man then signed the card
personally.17
In its attack on the cards, Respondent claims they are
invalid because all the signers were coerced, and some
were led to believe that a majority had already signed up
when they signed. I find no credible proof from em-
ployees who testified, and Respondent does not point to
credible testimony, that any were subjected to any types
of threats or other coercive remarks before or when they
signed. Some workers, like Arney, Surface, McClure, and
Pedigo, indicated that, while they knew the card would
make the Union their representative to try to get more
money and other benefits, one reason each signed was to
"go along with the rest," "if they wanted it, so do I," and
as McClure said "if you cannot lick them, join them"; but
their testimony indicates they got this information or im-
pression, not from what Yost told them, but from reading
notices on the plant bulletin board about the past election
and its result, or the union letter of July 26, or what other
workers told them in voluntary talks which indicated to
them that a majority had signed or would sign the cards.
While there is some proof that a few workers may have
secured an erroneous impression from notices in the plant
or what others told them about the exact status of the
Union at the time, none of this came from Yost or Harris,
hence cannot be charged to the Union as a false statement
or deliberate misrepresentation. To the contrary, Yost
testified without credible contradiction, and I find, that he
told the signers before they signed about the past election
in which the workers had already voted the Union in as
their bargaining agent. The record shows that practically
all the workers received the Union's letter of July 26,
which indicated clearly that the Union felt the "way was
now open for contract negotiations," which clearly im-
plied that the Union was preparing to negotiate a contract
for them; and in light of this statement and the knowledge
of all about the past election and its result, Yost's remarks
to some that the card was a membership application to be
used only "if the Union got in," and they would not have
to pay dues or initiation fees beforehand, could only in-
dicate to the signers that formal membership in the Union
would not be required until after it had secured a contract
for them, hence the "membership application" part of the
card would not be operative until that event. On this
point, Yost told some they could disregard the "member-
ship application" wording at the top of the printed part of
the card. But all this did not amount to a misrepresenta-
tion which would void the remaining portion of the card
containing the union-authorization wording, which nearly
all of the signers apparently read before signing. In all the
circumstances I must find that the cards constitute relia-
ble evidence of majority status, and that on April 10,
1967, the Union had 18 such signed cards which gave it
clear majority status when it made its demand of April
11.18
As Respondent has not sustained its burden of proof
that any of the signed cards were unreliable as proof of
majority status, and it has not otherwise adduced proof of
'S Respondent contends that Erie E . Walls , a retired man receiving so-
cial security payments, should not be considered an employee because he
comes to work at irregular times each week , as he pleases , and does odd
jobs , such as janitorial work, for a sufficient length of time to keep himself
busy without jeopardizing his right to full social security payments While
Stanton testified to this effect, I also note testimony of Yost that Walls at
times comes to work an average of 2 days a week , and works a full 8 hours
each day However , it appears that when Walls testified he was still limit-
ing his earnings to protect his social security benefits. I conclude that he
should be excluded from the unit. Taunton Supply Corp , 137 NLRB 221,
223, Sandy's Stores, Inc, 163 NLRB 728 Respondent also argues that
Kenneth McKinley Miller should not be included in the unit because he
was not formally on the payroll on April 10 The record shows that at that
time he was a trainee in the plant under a State rehabilitation program,
whereby he received commodities plus a family allowance from the
Federal Government each week, Respondent's arrangement with the
Government was to train him for a period of 6 months, with a renewal for
a second 6 months, and if he proved satisfactory he would be hired at the
end of either penod as a regular employee . In fact , Respondent hired him
as a permanent employee on July 3, 1967. I find that he was a trainee with
a reasonable expectation of permanent employment at the end of his
probation penod, and as such should be included in the unit Bryant
Chucking Grinder Company, 160 NLRB 1526.
"These findings are based on credited and mutually corroborative
testimony of Harris, Yost, Harold C. Arney, Edwin E. Wickhne, Jessie L.
Hypes, Jr., Carl A. Surface, Joseph A Romano, Everett E. Pedigo, and
George T. McClure
18 I have not counted the card of Erie Wal Is, who was not in the unit for
reasons stated above.
350-212 0-70-55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a good-faith doubt of that status which would overcome
the proof of the cards, I must conclude that, in light of its
prior union animus and continuing unfair labor practices
in 1966,19 its refusal to recognize or bargain'with the
Union as the statutory representative of the employees
was not motivated by a good-faith doubt but by a de sire
to avoid recognition and gain time within which to un-
dermine the Union's status.
I conclude finally that, whether the Union's bargaining
status in April 1967 be based on the continuance of the
earlier certification, or on the new authorization cards it
secured in April, Respondent has failed and refused since
April 12, 1967, to bargain with it in good faith as the
statutory representative of employees in the appropriate
unit aforesaid, in violation of Section 8(a)(5) and (1) of
the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused
to bargain with the Union , I shall recommend that it be
ordered to bargain collectively , upon request , with the
Union, and if an understanding is reached, embody such
understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization within the meaning
of the Act.
2. All employees at Respondent's Bluefield, West Vir-
ginia , plant, including parts department and service de-
partment employees, janitors, the inside salesmen, and
plant clerical employees, but excluding all office clerical
employees, commissioned salesmen, guards, professional
employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
3. At all times since April 8, 1967, the above Union
has been and now is the exclusive bargaining representa-
tive of all employees in the above appropriate unit within
the meaning of Section 9(a) of the Act.
4. By refusing to recognize and bargain with the above
Union as such representative on and after April 12, 1967,
19 The National Cash Register Company, 167 NLRB 1047.
20 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
852
and by engaging in surveillance of employees ' concerted
activities and giving the impression of such surveillance
in July 1966 , Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(5) and ( 1) and 2(6) and (7) of the Act.
5. Except as found above , Respondent has not en-
gaged in unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the Act, I recommend that
Respondent, Rish Equipment Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively, upon request,
with Chauffeurs, Teamsters and Helpers Local Union
No. 175, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the ex-
clusive representative of its employees in the following
appropriate unit: All employees of Respondent at its
Bluefield, West Virginia, plant , including parts depart-
ment and service department employees, janitors, the in-
side salesmen, and plant clerical employees, but exclud-
ing all office clerical employees, commissioned salesmen,
guards, professional employees, and supervisors as
defined in the Act.
(b) Engaging in surveillance of, or giving the impres-
sion of surveillance of, concerted or union activities of its
employees.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
any rights guaranteed to them by Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in the proviso
to Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive bargaining representative
of the employees in the unit described above, and if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business in Bluefield, West Vir-
ginia , copies of the attached notice marked "Appen-
dix."20 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.21
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
RISH EQUIPMENT CO. 853
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL, upon request, bargain collectively with
Chauffeurs, Teamsters and Helpers Local Union
No. 175, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining agent of our em-
ployees in the following appropriate unit, with
respect to rates of pay, wages, hours of employment
and other terms and conditions of employment, and
if an understanding is reached, embody such un-
derstanding in a signed agreement. The unit is:
All our employees in our place of business at
Bluefield, West Virginia, including parts depart-
ment and service department employees, jani-
tors, the inside salesmen, and plant clerical em-
ployees, but excluding all office clerical em-
ployees, commissioned salesmen, guards,
professional employees, and supervisors as
defined in the Act.
WE WILL NOT engage in surveillance of our em-
ployees' concerted or union activities, or give them
the impression that we are watching or spying on
such activities.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of any rights guaranteed to them by Section 7
of the Act, except to the extent that such rights may
be affected by an agreement requiring membership
in a labor organization as a condition of employment,
as authorized in the proviso to Section 8(a)(3) of the
Act, as amended.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization,
Dated By
RISH EQUIPMENT COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3663.